Date:
20130312
Docket:
IMM-3266-12
Citation:
2013FC260
Ottawa, Ontario,
March 12, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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B399
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
The
respondent is a Tamil male from Sri Lanka who arrived in Canada in 2010 aboard the MV Sun Sea. By virtue of an order of this Court, he will be
referred to as B399, rather than by his name.
[2]
B399
applied for refugee protection and, in 2012, a panel of the Immigration and
Refugee Board (Board) concluded that he had a well-founded fear of persecution
in Sri Lanka. The Board found that B399 was at risk by virtue of his membership
in a particular social group, namely, Tamil males who were passengers on the MV
Sun Sea. It noted that Sri Lankan officials regard those passengers as being
associated with the Liberation Tigers of Tamil Eelam (LTTE) and single them out
for harassment, abuse or torture on return to Sri Lanka.
[3]
The
Minister contends that the Board erred in its finding that B399 is a member of
a particular social group. He also maintains that the Board overlooked evidence
showing that B399 was unlikely to be regarded as an LTTE sympathizer. He asks
me to quash the Board’s decision and order another panel to reconsider B399’s
claim.
[4]
I
agree that the Board erred in finding that B399 is a member of a particular
social group. However, the Board also provided alternative grounds for granting
B399’s claim – persecution based on ethnicity or perceived political opinion.
Further, I cannot conclude that the Board overlooked evidence. Therefore, I
must dismiss this application for judicial review.
[5]
The
issues are:
1. Was
the Board’s conclusion that B399 is a member of a particular social group
unreasonable?
2. Did
the Board overlook relevant evidence relating to the risk facing B399 on return
to Sri Lanka?
II. Factual Background
[6]
B399
had numerous encounters with the LTTE and the Sri Lankan Army (SLA) over the past
20 years. Due to the conflict in the Jaffna peninsula in the early 1990s, his
family was forced to live in a refugee camp. During the mid-1990s, the SLA
attempted to capture the Jaffna peninsula. B399’s cousin was killed in a bombing.
Soon after, his family relocated to Killinochchi.
[7]
When
the peace accord was signed in 2002, B399 and his family returned to Jaffna. However, their home and fishing equipment was lost in the tsunami of 2004.
[8]
In
2006, hostilities once again erupted and the LTTE began a new recruitment
campaign. B399 tried to avoid recruitment, first by fishing during the day and
hiding at night, and later, by moving to Udappu village with his parents. Along
the way, the family was stopped at a number of LTTE and SLA checkpoints. After
questioning, they were released.
[9]
In
due course, B399 moved to Colombo, while the rest of the family moved back to Jaffna. However, Tamils were targeted in Colombo and B399 returned to Udappu. Things were
no better in Udappu, so B399’s uncle arranged for him to travel to Thailand. He left Sri Lanka in 2008 and registered with the UNHCR in Thailand. Even though the conflict in Sri Lanka ended in 2009, B399 travelled to Canada on the MV Sun Sea, arriving in Canada in August 2010.
III. The Board’s Decision
[10]
The
Board found that B399 was largely credible, although he had embellished his
claim by asserting that he had undergone a week of forced training with the
LTTE.
[11]
The
Board surveyed the evidence relating to the treatment of Tamil returnees in Sri Lanka, particularly passengers on the MV Sun Sea. It found that the Sri Lankan Defence
Secretary believed that the voyage of the MV Sun Sea was undertaken as a means
of raising funds for the LTTE, and that the passengers were associated with
that group.
[12]
The
Board reviewed the evidence regarding the treatment of returnees and found that
it was mixed. Some organizations report that returnees may face arrest or
detention, and that failed asylum seekers are singled out for physical
mistreatment. Other groups found that returnees are simply questioned and
released. The Board preferred the former evidence, as the latter came from
groups that had been given permission to monitor the actions of Sri Lankan
officials. The Board believed that those officials would behave in a more benign
fashion while being observed by international monitors.
[13]
Based
on this evidence, the Board found that B399 would likely be questioned on
return to Sri Lanka. Further, because he would be identified as a MV Sun Sea
passenger, he would be suspected of being a LTTE sympathizer. In turn, this
meant that he faced a risk of harassment, abuse or torture.
[14]
Accordingly,
the Board concluded that B399 had a well-founded fear of persecution based on
his membership in a particular social group: the passengers on the MV Sun Sea.
IV. Issue One – Was the
Board’s conclusion that B399 is a member of a particular social group
unreasonable?
[15]
The
Minister argues that the Board unreasonably concluded that the passengers on
the MV Sun Sea are members of a particular social group.
[16]
After
the hearing on this judicial review, the Court rendered a decision in Minister
of Citizenship and Immigration v B380, 2012 FC 1334 [B380].
There, Chief Justice Paul Crampton found that the Board had erred in finding
that passengers on the MV Sun Sea are members of a particular social group. In
particular, he concluded that passengers on the MV Sun Sea could not be
described as members of a group “associated by a former voluntary status,
unalterable due to its historical permanence”, a category recognized by the
Supreme Court of Canada in Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689, at para 70. Chief Justice Crampton concluded that that
category was not so broad as to include people who come together for the very
purpose of seeking refugee status in Canada. Rather, it is confined to groups
who can be identified on the basis of immutable or fundamental characteristics
related to discrimination or human rights (at paras 23-24).
[17]
On
the particular facts, B380, above, could not claim refugee protection
based on his ethnicity or perceived political opinion because his account of
events leading to his departure from Sri Lanka was disbelieved by the Board.
While some passengers on the MV Sun Sea may be regarded as being associated
with the LTTE, there was no reason to believe that was true of B380.
[18]
A
judge of the Federal Court will follow a decision of one of his or her
colleagues unless it is manifestly wrong, or there are strong reasons not to do
so. I can find no basis for departing from Chief Justice Crampton’s conclusion
that passengers on the MV Sun Sea do not represent a particular social group.
Therefore, I must find that the Board’s conclusion to the contrary was
unreasonable.
[19]
However,
that conclusion does not dispose of this application for judicial review. Here,
unlike in B380, the Board found that B399 faced persecution based on
ethnicity and perceived political opinion. Unfortunately, the Board’s findings
are not as clear as they could have been; yet, the following passage in its
reasons supports B399’s contention that the Board did not rest its conclusion
solely on his membership in a particular social group as a passenger on the MV
Sun Sea:
. . . the claimant will most
likely be detained and questioned . . . upon his return to Sri Lanka… The panel finds that the authorities will suspect the claimant has links to the LTTE. The
country documents establish that Tamils suspected of having links to the LTTE
continue to be subject to serious abuses, including torture, by the authorities
in Sri Lanka.
[20]
This
finding distinguishes this case from B380. In that case, there was no
evidence before the Board that Sri Lankan authorities would regard the claimant
as being associated with the LTTE or that he would be otherwise exposed to
persecution for any reason other than his having been a passenger on the MV Sun
Sea. As Chief Justice Crampton noted, the claimant could not succeed on any
other basis because the Board had found that his evidence was not credible.
Therefore, the sole issue was whether the claimant would experience persecution
based on his having been a passenger on the MV Sun Sea. Here, there were
broader, albeit overlapping, grounds for the claimant’s request for refugee
protection. And the Board found B399 to be credible in respect of those
grounds.
[21]
Therefore,
while the Board’s decision regarding B399’s membership in a particular social
group - passengers on the MV Sun Sea - was unreasonable, its conclusion that
B399 nevertheless had a well-founded fear of persecution as a young, Tamil male
perceived to have ties to the LTTE was unaffected by that part of its decision.
The question remains, however, whether the Board failed to take account of
evidence that contradicted its findings. That is the second issue on this
application for judicial review.
V. Issue Two – Did the
Board overlook relevant evidence relating to the risk facing B399 on return to Sri Lanka?
[22]
The
Minister argues that the Board ignored evidence showing that it was unlikely
that Sri Lankan authorities would suspect B399 of involvement in the LTTE. B399
had already been questioned by authorities and, on his own evidence, was
cleared of having any ties to the LTTE. Further, he had been allowed to leave
the country with a genuine passport at a time when members of the LTTE were
actively being sought by Sri Lankan officials. There is no evidence that
authorities would regard all passengers on the MV Sun Sea as having an
association with the LTTE. The UNHCR does not regard all returning Tamils as
being at risk. Therefore, the Board did not have a sound basis for rejecting
the reports of international monitors showing that returnees are treated
fairly.
[23]
I
cannot conclude that the Board’s treatment of this evidence was unreasonable.
The Board reviewed all of B399’s evidence about his personal history and circumstances,
the attitude of Sri Lankan authorities toward returnees who travelled on the MV
Sun Sea, and the treatment of returnees who are regarded as LTTE sympathizers.
The Board also explained why it gave greater weight to independent reports as
compared to the observations of international monitors. In my view, the Board’s
analysis was thorough and its reasons are transparent, intelligible and
justified.
VI. Conclusion and
Disposition
[24]
While
the Board’s decision on B399’s alleged membership in a particular social group
was unreasonable, it nevertheless concluded that B399 faced persecution based
on ethnicity or perceived political opinion. That conclusion was based on
B399’s credible evidence about his experiences in Sri Lanka before he left and
the evidence about the treatment of Tamil returnees. The Board took account of
the relevant evidence and explained why it gave greater weight to reports from
certain sources as compared to others. Overall, therefore, its decision fell
within the range of defensible outcomes based on the facts and the law. It was
not unreasonable.
[25]
The
parties made brief oral submissions regarding potential questions of general
importance. However, given the basis on which I have decided this application
for judicial review, no questions arise for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James W. O’Reilly”
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